Citation Nr: 9930160
Decision Date: 02/09/00 Archive Date: 09/08/00
DOCKET NO. 97-24 152 DATE FEB 09, 2000
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona
ORDER
The following corrections are made in a decision issued by the
Board in this case in October 1999:
On page 11 delete the last paragraph.
On page 13, line 3 delete "headaches or head injury or any."
On page 15, delete numbered paragraph 3.
On page 15, change numbered paragraph 4 to numbered paragraph 3.
On page 16, in numbered paragraph 5, line 2, delete "a head and."
On page 16, change numbered paragraph 5 to numbered paragraph 4.
Mark D. Hindin,
Member, Board of Veterans' Appeals
Citation Nr: 9930160
Decision Date: 10/22/99 Archive Date: 10/29/99
DOCKET NO. 97-24 152 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to service connection for residuals of a head
injury.
2. Entitlement to service connection for residuals of a back
injury.
3. Entitlement to service connection for chest wall
syndrome.
4. Entitlement to an original compensable evaluation for
hemorrhoids.
5. Entitlement to an original evaluation in excess of 20
percent for cervical strain with minimal left C3-4 foramen
narrowing.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Thomas S. Kelly, Counsel
INTRODUCTION
The veteran had active military service from June 1977 to
June 1995.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from March 1996 and January 1997 rating
determinations of the Phoenix Department of Veterans Affairs
(VA) Regional Office (RO). That decision in part denied
entitlement to service connection for residuals of a head
injury, back injury, and chest wall syndrome, and granted
service connection for hemorrhoids evaluated as
noncompensable. The grant of service connection ,and the
noncompensable evaluation were effective the day following
separation from service, in July 1995.
At his July 1997 personal hearing, the veteran withdrew the
issues of service connection for residuals of exposure to
Chernobyl radiation and exposure to asbestos fire. He also
requested that the issues of service connection for compound
myopic astigmatism of the left eye and simple myopia of the
right eye, claimed as an eye injury, be withdrawn. As the
veteran has requested that these issues be withdrawn, the
Board will not address them in this decision. 38 C.F.R.
§ 20.204 (1999) (an appeal may be withdrawn in writing at any
time prior to the issuance of a Board decision).
As the veteran noted disagreement with the assignment of the
initial disability evaluations granted in the March 1996
rating determination and properly perfected his appeal, the
propriety of the ratings during the time period from his
separation from service are currently before the Board.
Grantham v. Brown, 114 F.3d 1156 (1997); Fenderson v. West,
12 Vet. App. 119 (1999). Although the RO had not evaluated
the veteran's claim in light of Fenderson, the Board finds
that there has been no due process violation. That is, the
RO has considered the appropriate evaluation for the entire
period since the effective date of the grants of service
connection.
FINDINGS OF FACT
1. There is no competent evidence of a nexus between a
current headache disorder and service.
2. There is competent evidence that the veteran had thoracic
spine and chest wall injuries inservice, and possible current
thoracic spine or chest wall disorders related to service.
3. There has been no evidence of large, thrombotic, or
irreducible hemorrhoids at any time since the effective date
of the grant of service connection for that disability.
CONCLUSIONS OF LAW
1. The claim for service connection for residuals of a head
injury is not well grounded. 38 U.S.C.A. § 5107 (West 1991).
2. The claim for service connection for residuals of a
thoracic spine injury is well grounded. 38 U.S.C.A. § 5107
(West 1991).
3. The claim for service connection for residuals of a chest
wall injury is well grounded. 38 U.S.C.A. § 5107 (West
1991).
4. The criteria for an increased (compensable) evaluation
for hemorrhoids have not been met during any period since the
effective date of the grant of service connection.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 3.321(b)(1), 4.7, 4.114, Diagnostic Code 7336 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations
also provide that service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(1999). For the showing of chronic disease in service there
is required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (1999).
A well-grounded claim is a plausible claim that is
meritorious on its own or capable of substantiation. The
evidence need only show the claim is possible. See 38
U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
In general a well grounded claim for service connection
requires medical evidence of a current disability; medical
or, in certain circumstances, lay evidence of inservice
incurrence or aggravation of a disease or injury; and medical
evidence of a nexus between the claimed inservice injury or
disease and a current disability. Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table).
Headaches
A review of the record demonstrates that the veteran was seen
with complaints of having been hit in the head on a door in
April 1979. The veteran reported having had headaches which
started in the right temple and moved across the forehead at
that time. He also noted that he had been vomiting blood.
He indicated that he had tried to "drink" his headache
away. Physical examination revealed cranial nerves II-XII
were intact. Motor examination was within normal limits.
In November 1993, the veteran was seen with complaints of
headaches for two weeks. He noted that his headache was
right-sided and that it did not seem to go away. He reported
taking Advil with no relief. Physical examination revealed
that cranial nerves II-XII were grossly intact. A diagnosis
of chronic headache-migraine vs. sinus was rendered at that
time.
On his April 1995 service separation report of medical
history, the veteran checked the box indicating that he was
having or had had frequent or severe headaches. He reported
that the headaches were due to stress.
At his July 1997 hearing, the veteran testified that he
sustained an inservice head injury when the trunk lid of a
car hit him in the head while he was removing a mailbag. The
veteran reported having had headaches since the time of this
injury. He indicated that he only had relief when staying in
the dark and being totally quiet. He noted that the
headaches went right across the frontal portion.
At the time of a December 1997 VA examination, the veteran
again reported having been hit in the head with the trunk of
the car when removing a mailbag. The veteran indicated that
he would have headaches approximately three or four times in
a five day work week. He noted taking Advil for the pain.
He described the pain as a low based vibrating tone. He
reported that the headache was supra-orbital and that it
sometimes migrated into the eyes. The veteran indicated that
he was unsure if his headaches were related to work.
Physical examination revealed that cranial nerves II-XII were
intact. The tongue was mid-line and the palate elevated
symmetrically. The examiner noted that the veteran's
headaches did not appear to be vascular in nature. He also
expressed the opinion that it was difficult to ascertain
whether the veteran's headaches were related to his inservice
head injury.
In the instant case there is competent evidence of an
inservice head injury and headaches. Since service there has
been no diagnosis of a headache disorder, although a VA
examiner commented on the veteran's headaches. The examiner
appears to have been merely commenting on a history related
by the veteran and did not report the presence of a current
headache disorder. Rather the examiner merely commented on
symptoms reported by the veteran.
Even if the examiner's statement could be read as reporting
the presence of a current headache disorder, there is no
competent evidence of a nexus between the inservice injury
and the purported current headache disorder. The examiner
could not relate the current symptomatology to service, and
there is no other competent evidence relating a current
headache disorder to service.
The veteran has testified that he has experienced headaches
ever since the inservice injury. He is competent to report
such a continuity of symptomatology, but competent evidence
would still be needed to relate that continuity to any
particular currently diagnosed headache disorder. Clyburn v.
West, 12 Vet. App. 296 (1999). In the absence of such nexus
evidence the Board concludes the claim is not well grounded
and must be denied.
Thoracic Spine and Chest Wall
A review of the record demonstrates that the veteran
sustained an injury to his thoracic spine region in April
1982. At the time of a follow-up visit, the veteran was
diagnosed as having a probable strain.
In November 1994, the veteran reported that he had had chest
pain since his car had fallen on him a few days earlier.
Physical examination revealed that the veteran was in obvious
discomfort. At the time of a November 30, 1994, follow-up
visit, the veteran was diagnosed as having a rib
contusion/fracture, which was healing. At the time of a
February 1995 outpatient visit, the veteran was diagnosed as
having chest wall syndrome from his injury.
On his April 1995 service separation report of medical
history, the veteran checked the "yes" box when questioned
as to whether he had or was having pain or pressure in his
chest.
At the time of his May 1997 VA examination, the veteran
reported having injured his middle thoracic area when he came
out from under a truck and hit his back on the differential.
He stated that he had had symptoms off and on since that
time. He noted having pain in the middle back two to three
days per week. The veteran reported having some weakness and
fatigability in the thoracic spine region. Physical
examination revealed slight tenderness in the right and left
thoracic musculature at the level of the tip of the scapula.
There was no pain on midline percussion and no muscle spasm.
Flexion was to 60 degrees while extension was to 25 degrees.
Side bending to the right and left was to 20 degrees. The
various ranges were performed without complaints of pain.
The examiner noted that functional impairment in relation to
all of the factors was considered very minor or minimal.
At his July 1997 hearing, the veteran testified that he
injured the thoracic region of his back when crawling out
from under a vehicle which was being prepared for loading on
to an airplane. The veteran reported having had a continuous
throb throughout that region since the time of that injury.
The veteran also reported that in 1984, an Oldsmobile Tornado
that he was working on fell on his chest and that the car had
to be jacked up to pull him out. He testified as to having
had discomfort ever since that time. The veteran stated that
he had discomfort in both the frontal portion and the
thoracic region of his chest.
In December 1997, the veteran was afforded a VA examination.
At the time of the examination, the veteran again reported
having hit his thoracic spine region on the rear differential
of a large truck.
Physical examination revealed tenderness over the T9
vertebrae. The examiner indicated that the veteran had
periodic thoracic spine pain of unclear etiology. He noted
that as the veteran traced this pain back to his injury, the
injury might have changed his biomechanics over the course of
time, which might have developed into arthritis.
In the instant case there is competent evidence of inservice
thoracic spine and chest wall injuries. Moreover, the
veteran has testified that he has had thoracic and chest wall
pain for a number of years following these inservice
injuries. Furthermore, on the most recent VA examination,
the veteran was diagnosed with periodic thoracic spine pain,
which the examiner indicated might have been related to the
veteran's inservice injuries, resulting from a change in
biomechanics due to the injury. Thus, competent evidence of
a current disability and of a possible nexus between that
disability and service has been provided.
Accordingly, the Board finds that the veteran's claims for
service connection for thoracic spine and chest wall
disorders are well grounded. The Board also finds that
additional development is necessary in order to afford the
veteran due process and comply with the duty to assist. This
development is addressed in the remand portion of the
decision.
Hemorrhoids
Initially, the Board finds that the veteran's claim for
entitlement to an increased evaluation for hemorrhoids is
well grounded within the meaning of 38 U.S.C.A. § 5107(a);
that is, plausible claims have been presented. Murphy v.
Derwinski, 1 Vet. App. 78 (1990).
Disability evaluations are determined by the application of
VA Schedule for Rating Disabilities, which is based on
average impairment of earning capacity. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic
codes identify the various disabilities.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1999).
Service connection is presently in effect for hemorrhoids,
which has been assigned a noncompensable disability
evaluation. Under 38 C.F.R. § 4.114, Diagnostic Code 7336
(1999), a noncompensable evaluation is warranted for mild or
moderate hemorrhoids. A 10 percent evaluation is warranted
for large or thrombotic hemorrhoids, irreducible, with
excessive redundant tissue, evidencing frequent recurrences.
During service, the veteran was found to have hemorrhoids on
several occasions. At the time of his May 1997 VA
examination, the veteran reported that he first developed
hemorrhoids in 1977. He noted that this problem worsened in
the 1980's. The veteran indicated that he now controlled his
hemorrhoids with diet. He stated that he had pain when
sitting on hard surfaces and that he used a balloon donut to
prevent the pain. He noted that he had not sought any
medical attention. Physical examination revealed three
hemorrhoids that were one centimeter in diameter, non-
thrombosed, and non-inflamed. The veteran reported that he
was employed as a network installer.
At the time of his July 1997 hearing, the veteran reported
that he was using Preparation H for his hemorrhoids. He
testified that he was not receiving treatment for his
hemorrhoids and that he had not had any surgery on his
hemorrhoids. The veteran indicated that he had occasional
bleeding, which was mainly streaking of the stool. The
veteran noted that certain food items would cause
constipation. He reported that the bleeding would occur
approximately one time per month. He also noted having
itching. He indicated that his hemorrhoids were affected by
the amount of driving he had to do for his job. He testified
that if he had to do a lot of driving his hemorrhoids would
become more of a problem. He stated that it was his belief
that his hemorrhoids warranted a 10 percent disability
evaluation.
In November 1997, the veteran was afforded an additional VA
examination. At the time of the examination, the veteran
reported that hemorrhoids had been present since 1977 or
1978. He stated that he would have occasional rectal
bleeding but that this was controlled by diet. He avoided
having hard stool by properly dieting and used a donut when
doing a lot of driving or sitting.
Rectal examination revealed internal and external
hemorrhoids, which the examiner described as moderate.
The Board is of the opinion that a compensable evaluation is
not warranted for the veteran's hemorrhoids. At the time of
his May 1997 VA examination, the veteran was noted to have
only three one centimeter in diameter hemorrhoids, which were
non-thrombosed and non-inflamed. At the time of his November
1997 VA examination, the veteran was found to have both
internal and external hemorrhoids, but they were described as
moderate. While the veteran may have had to alter his diet
in order to prevent flare-ups, the criteria necessary for an
increased evaluation have not been met, as he has not been
shown to have large or thrombotic hemorrhoids which are
irreducible or have excessive redundant tissue.
The Board has also considered all applicable provisions of
38 C.F.R. Parts 3 and 4 but finds no basis for an allowance.
In this regard, the Board notes 38 C.F.R. § 3.321(b)(1)
provides that in an exceptional case, where the schedular
evaluations are found to be inadequate, the Chief Benefits
Director or the Director, Compensation and Pension Service,
upon field station submission, is authorized to approve an
extra-schedular evaluation commensurate with the average
earning capacity impairment due exclusively to the service-
connected disability. 38 C.F.R. § 3.321(b)(1) (1999).
The veteran has not asserted, nor does the evidence suggest,
that the regular schedular criteria are inadequate to
evaluate his disabilities. Accordingly, the Board will not
consider referral for consideration of an extra-schedular
rating. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
Service connection for residuals of a head injury/headaches
is denied.
The veteran has submitted well-grounded claims of service
connection for residuals of a thoracic spine injury and chest
wall syndrome.
A compensable evaluation for hemorrhoids is denied.
REMAND
With regard to the veteran's claim for service connection for
residuals of a head injury/headaches, the examiner's opinion
that it is difficult to ascertain whether the veteran's
current headaches are related to his inservice injury is
insufficient to render a proper determination on the issue of
service connection for residuals of a head injury/headaches.
With regard to the veteran's claims for service connection
for a thoracic spine injury and chest wall injury, the Board
notes that the VA examiner, at the time of the December 1997
VA examination, indicated that the veteran had periodic
thoracic spine pain. He also noted that the veteran's
injuries may have changed his biomechanics and that over the
course of time this could have developed into arthritis or
other disorders. The Board is of the opinion that additional
development is warranted to determine what, if any disorders,
result from the veteran's thoracic spine or chest wall
injuries.
With regard to the veteran's claim for an increased
evaluation for cervical strain with minimal left C3-4 foramen
narrowing, the Board notes that the veteran is currently
evaluated as 20 percent disabled under Diagnostic Code 5293.
At the time of the most recent VA examination, the veteran
was found to have some numbness over the ulnar distribution
of the left hand. The ulnar nerve was not tender in the
groove and there was no positive Tinel's sign. The examiner
noted that the veteran's neuropathy could possibly be of
central origin. A diagnosis of chronic neck strain with left
ulnar neuropathy was rendered at that time. The Board
observes that one of the criteria necessary for determining
whether an increased evaluation is warranted under Diagnostic
Code 5293, is the absence or presence of neuropathy
attributable to the service-connected disability. Based upon
the examiner's most recent findings, the Board is unable to
determine whether an increased evaluation is warranted. As
such, additional development is necessary.
VA regulations provide that where "diagnosis is not
supported by the findings on the examination report or if the
report does not contain sufficient detail, it is incumbent
upon the rating board to return the report as inadequate for
evaluation purposes." 38 C.F.R. § 4.2 (1999); see 38 C.F.R.
§ 19.9 (1999). Where the Board makes a decision based on an
examination report that does not contain sufficient detail,
remand is required "for compliance with the duty to assist
by conducting a thorough and contemporaneous medical
examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996);
Stanton v. Brown, 5 Vet. App. 563, 569 (1993).
1. The RO should request that the
veteran supply the names and addresses of
all facilities that have treated him for
any headaches or head injury residuals or
any thoracic, chest wall, or cervical
injuries, or their residuals since
service. After securing the necessary
release(s), the RO should obtain legible
copies of all records not already
contained in the claims folder, to
include any identified VA clinic or
medical center. Once obtained, all
records must be associated with the
claims folder.
2. The RO should schedule the veteran
for VA orthopedic and neurological
examinations of the cervical spine, the
thoracic spine, and the chest wall to
determine the nature and etiology of any
thoracic or chest wall disorder and the
nature and severity of his service-
connected cervical strain with minimal
left C3-4 narrowing. All appropriate
tests and studies should be performed and
all findings must be reported in detail.
The claims folder and a copy of this
remand must be made available to the
examiner for review prior to the
examination.
With regard to the chest wall and the
thoracic spine, the examiners are
requested to render an opinion as to
whether the veteran currently has any
thoracic spine or chest wall disorders.
If so, the examiners are requested to
render an opinion as to the etiology of
this disorder(s) and whether it is at
least as likely as not that they had
their onset inservice or are related to
any inservice injuries.
With regard to the service connected
cervical strain with minimal left C3-4
foramen narrowing, if loss of range of
motion is present, the examiners should
comment on whether the loss of range of
motion is mild, moderate, or severe as
well as the reason for the loss of
motion. The examiners are further
requested to carefully elicit from the
veteran all pertinent subjective
complaints with regard to the neck and to
make specific findings as to whether each
complaint is related to the service-
connected cervical strain with minimal
left C3-4 foramen narrowing. The
examiners are also requested to comment
on the absence or presence of the
following: recurrent attacks; recurrent
attacks with intermittent relief;
symptoms compatible with neuropathy with
characteristic pain and demonstrable
muscle spasm; or other neurological
findings appropriate to site of diseased
disc, little intermittent relief. The
examiners are further requested to render
an opinion as to whether there is
adequate pathology present to support the
level of each of the veteran's subjective
complaints.
The examiners are also requested to offer
opinions on the following issues:
(a) Can pain and limitation of
motion, if any, be attributed solely to
the service-connected cervical strain
with minimal left C3-4 foramen narrowing?
(b) Does the service-connected
cervical strain with minimal left C3-4
foramen narrowing cause weakened
movement, fatigability, or
incoordination? If so, the examiners
should comment on the severity of these
manifestations on the ability of the
appellant to perform average employment
in a civil occupation.
(c) In relation to any subjective
complaints of pain, is pain visibly
manifested on movement of the joint, the
presence and degree of, or absence of,
muscle atrophy attributable to the
cervical strain with minimal left C3-4
foramen narrowing, the presence or
absence of changes in condition of the
skin indicative of disuse due to the
cervical strain with minimal left C3-4
foramen narrowing, or the presence or
absence of any other objective
manifestation that would demonstrate
disuse or functional impairment due to
pain attributable to the service-
connected cervical strain with minimal
left C3-4 foramen narrowing.
3. The RO should schedule the veteran
for a VA neurological examination to
determine the nature and etiology of any
headache disorder or residuals of a head
injury. All appropriate tests and
studies should be performed. The claims
folder must be made available to the
examiner for review prior to the
examination. The examiner is requested
to render an opinion as to whether the
veteran has a chronic headache disorder,
and, if so, the etiology of the disorder,
and whether it is at least as likely as
not that it is related to any headaches
reported by the veteran in service or any
injury sustained by the veteran in
service.
4. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development has been conducted
and completed in full. If any
development is incomplete, including if
the requested examinations do not include
all test reports, special studies, or
opinions requested, appropriate
corrective action should be implemented.
5. Thereafter, the RO should
readjudicate the veteran's claim for
service connection for residuals of a
head and back injuries and chest wall
syndrome. The RO should also
readjudicate the claim for an increased
evaluation for cervical strain with
minimal left C3-4 foramen narrowing, with
review including consideration of the
provisions of 38 C.F.R. §§ 3.321(b)(1),
4.40, 4.45, and 4.59, and DeLuca v. Brown
8 Vet. App. 202 (1995).
If the benefit requested on appeal is not granted to the
veteran's satisfaction, or if a timely notice of disagreement
is received with respect to any other issue, the RO should
issue a supplemental statement of the case. A reasonable
period of time for a response should be afforded.
Thereafter, the case should then be returned to the Board for
further appellate consideration, if in order.
By this remand, the Board intimates no opinion as to any
final outcome warranted. No action is required of the veteran
until he receives further notice.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Mark D. Hindin
Member, Board of Veterans' Appeals